The Countermobilization Myth

Bobo does us a favor by summarizing virtually every aspect of the mythological received wisdom about Roe v. Wade:

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.

Virtually every sentence here is misleading or completely false. To give the shorter version of what I’ve explained at interminable length elsewhere (1, 2), here’s why:

• The claim that social conservatives were uniquely mobilized by Roe v. Wade is simply incorrect. First of all, the abortion debate in state legislatures prior to Roe was highly divisive, and supporters of criminalized abortion were powerful enough to keep extremely restrictive abortion statutes on the books in most states. Pro-lifers did not regard legislative changes to be legitimate, just as they do not see civil rights statutes that protect gay rights as legitimate. (If you take a look at the National Review in the years before Roe, you will disabused of any notion that movement conservatives would view major legislative changes on abortion as legitimate.) Secondly, the Supreme Court was a much bigger political issue in Nixon’s campaigns in 1968 and 1972 than it is today. Social conservatives began to be agitated not by Roe but by the Supreme Court’s school prayer and criminal justice decisions–which, while mostly correct, were (unlike Roe) legitimately countermajoritarian.

• As is this case for virtually all such arguments, Brooks doesn’t explain what the “centrist” position he attributes to the “majority” would look like. The most obvious reason for this vagueness is to cover up the fact that the policy in Roe is far closer to public opinion that the legislative status quo ante (which is why it has always had strong public support.) It’s true that the public is ambivalent about abortion in some circumstances, but these differences cannot be transcribed into law. The “centrist” compromise of the minority of legislatures that changed their abortion laws was to delegate abortion decisions to doctors under vague standards. Which, in practice, means abortion on demand for affluent white women and extremely restrictive abortion access for other women. I have no doubt that this is appealing to Brooks, but his projection of this completely indefensible policy outcome onto a majority of the public is quite problematic.

• Brooks’ attempt to pin this all on Harry Blackmun is a nice trick. But transparently specious, since one justice’s vote is not very powerful. You can see what Brooks is trying to do here: Harry Blackmun, virtually alone, thinks that there are rights to reproductive freedom within American constitutionalism. But, of course, Roe was a 7-2 decision, and 13 of the 17 justices who have served since 1972–most of them Republican appointees–believe the case to have been correctly decided.

• Roe did not “put the issue into the courts,” as there was considerable litigation at the state level as well. Moreover, the issue ended up in the courts largely as the result of legislative deferral. Legislatures had many tools at their disposal to re-take power if they wished; they didn’t use them.

What I do hope is that Brooks’ use of this argument will help to convince progressives who advance the “contrarian” argument that they’re being played for suckers. It’s perfectly obvious why Brooks would argue these falsehoods: it allows him to pretend that a legislative status quo massively tilted toward the minority that favors criminalization represented a centrist consensus (and relieves him of defending the de facto Republican policy of “abortion should be illegal unless a woman in my social class wants one” altogether.) But why progressives go along with this is beyond me.

UPDATE: TBogg and Professor B. offer shorter Bobo. Michael Berube notes that Bobo’s logic is equally applicable (indeed, more applicable) to other Supreme Court decisions.

UPDATE 2: Echidne of the Snakes, Digby, The Rude Pundit and the Axis of Evel Knievel join the Bobo-bashing party.